Codification into Convention of Diplomatic Protection, State Responsibility for Internationally Wrongful Acts Also Debated
The Organization and Member States must work together to ensure accountability for crimes committed by United Nations officials and experts on missions, Sixth Committee (Legal) delegates stressed today during a far-ranging meeting that also included deliberations on the responsibility of States for internationally wrong acts and diplomatic protection.
As the Committee began its consideration of those topics, it had before it the reports of the Secretary General on Criminal Accountability of United Nations officials and experts on mission (document A/71/167); Responsibility of States for internationally wrongful acts (documents A/71/79 and A/71/80); and Diplomatic protection (documents A/71/93 and A/71/93/Corr.1).
“If our commitment to the rule of law is to be more than rhetoric, the United Nations and Member States must lead by example,” the representative of Canada said, also speaking for New Zealand, Australia. Sexual exploitation and abuse by United Nations experts and officials harmed the most vulnerable groups in the very populations the Organization was seeking to protect.
Stressing the importance of developing a culture, both in Member States and at the United Nations, in which individuals were encouraged to report alleged crimes, she also welcomed the recent appointment of the first Special Coordinator on Improving the United Nation’s Response to Sexual Exploitation and Abuse.
Another recent development that would go far towards ensuring accountability, said the representative of the European Union, was Security Council resolution 2272 (2016) which requested the Secretary-General to assess whether a Member State had taken steps to investigate allegations and hold the perpetrators accountable.
However, despite such promising developments, she noted, the fact that all referrals since July 2007 remained outstanding while the number of allegations had increased from 2014 to 2015 was disappointing. The Union stood ready to consider a proposal for a comprehensive international legal framework that would clarify the circumstances under which Member States could exercise jurisdiction, as well as the categories of individuals and crimes subject to that jurisdiction.
Stressing the importance of the right to a fair trial, the Russian Federation’s delegate stressed that the offender’s State of nationality should have jurisdiction. Most States did have mechanisms for prosecuting nationals who were United Nations officials, she said, adding that if an international legal lacuna had been identified, a convention would be appropriate. However, if the problem was due to the lack of political resolve in harnessing domestic legal instruments, a new international treaty would hardly change the situation.
Ethiopia was a troop-contributing country, its representative pointed out, adding that her Government was committed to carrying out the necessary investigations when reports of misconduct were received. While allegations of sexual exploitation and abuse were extremely serious, she stated, she also observed that, in Ethiopia’s limited experience, some of those allegations did not meet the minimum evidentiary standard.
On the topic of jurisdiction, the representative of Trinidad and Tobago, speaking for the Caribbean Community, stressed that it was important for States to establish such jurisdiction over crimes committed by nationals serving at peacekeeping missions. Furthermore, all personnel needed to be properly vetted by contributing States, and the United Nations and all United Nations officials and experts on mission should be made aware of the need to respect and obey the national laws of the host State.
As Indonesia was also a troop-contributing country, its delegate reminded the Committee that the peacekeepers — over 100,000 personnel in sixteen missions — were doing an exemplary job in extremely difficult situations. The despicable acts of a few must not tarnish the hard-earned reputation of the vast majority.
The representative of Switzerland reminded the Committee that efforts were currently focused on sexual exploitation and abuse. It was also necessary to focus on combating financial offences as well that involved United Nations civilian personnel, not just within the Secretariat, but in the Funds and Programmes. “It is vitally important that procedures and mechanisms are established to make sure that all crimes committed by UN staff are dealt with consistently and professionally,” she emphasized.
The Committee then turned to the consideration of the responsibility of States for internationally wrongful acts. During heated deliberations, the representative of the Dominican Republic, speaking for the Latin American and Caribbean Community (CELAC), said that since the 2001 adoption of the draft articles on the topic, its future had been “an object of much debate.” The question of adopting a convention based on those articles should be thoroughly considered, as codifying articles in a binding instrument could bring clarity and legal certainty to the subject, addressing gaps in international law.
Portugal’s delegate, noting that the draft articles had undergone a long period of reflection, said that it was time to seek agreement on a way forward. The adoption of a convention would honour the work of the International Law Commission (ILC) and its special rapporteurs. It was an area of international law that deserved to be incorporated into a legal instrument.
However, the representative of Finland, also speaking for the Nordic countries of Denmark, Iceland, Norway, and Sweden, said that it would not be advisable to embark on negotiations for a convention. The time was not ripe for a diplomatic conference aimed at producing a convention, she said, cautioning against jeopardizing the delicate balance built into the draft articles by reopening them.
Echoing those words, the representative of the United States said that the negotiation of a convention would add little in terms of additional authority or clarity. While the articles provided helpful guidance to courts, tribunals, and States, the resulting convention might ultimately not enjoy wide-spread acceptance.
Taking up the matter of diplomatic protection, the delegate of Cuba said that the adoption of a convention on that matter would help harmonize all the existing in jurisprudence. Observing that sometimes States used diplomatic protection as a kind of pressure tactic against other States, he added that diplomatic protection was the sovereign right of States and part of the rule of law.
However, other delegates expressed reservations, with Singapore’s representative pointing out that several draft articles on diplomatic protection, such as the one on stateless persons and refugees, represented progressive development of the law rather than a codification pf existing customary international law. Iran’s delegate also expressed doubts that the current draft articles were based on a thorough understanding of the rights of the individual and the rights of the State.
Also speaking today were representatives of Belarus, Malawi, Iran (on behalf of the Non-Aligned Movement), South Africa (on behalf of the African Group), Norway (on behalf of the Nordic countries), Sudan, El Salvador, Thailand, Venezuela, Nigeria, Israel, Mexico, Algeria, India, Peru, Georgia, Nepal, Malaysia, Morocco, Bangladesh, Viet Nam, New Zealand (also on behalf of Canada and Australia), United Kingdom, Greece, China, and Australia (also on behalf of New Zealand and Canada). Observers for the Holy See and State of Palestine also participated in the debate, as did representatives of the International Development Law Organization and the International Committee of the Red Cross.
The Sixth Committee will next meet at 10 a.m. on Monday, 10 October, to continue its consideration of diplomatic protection and to take up the status of Protocols Additional to the Geneva Convention of 1949 and relating to the protection of victims of armed conflicts.
RUSLAN VARANKOV (Belarus), associating himself with the Non-Aligned Movement, said that efforts to ensure the rule of law at the international level should be based on sovereign rights and equality of States, non-interference and the peaceful settlements of disputes. He also said that, on the improvement of the work of the United Nations, that he did not understand the selective approach to international commitments, dividing them between less and more important issues. The rule of law within the United Nations should not just protect the rights of staff of the Secretariat. He asked how, within the Organization, the basic criteria of the rule of law could be ensured, including openness and transparency in decision-making.
LOT THAUZENI PANSIPADANA DZONZI (Malawi) said his country was committed to strengthening the rule of law to ascertain peaceful settlements of disputes and fundamental freedoms. In ensuring the independence of its judiciary, Malawi had established the Judicial Service Commission that was responsible for the appointment of all judges. That notion of independence had been extended to the country’s Directorate of Public Prosecutions, the Malawi Electoral Commission and its human rights commissions. Its police sector was also undergoing reforms, including implementing a professional standards unit, an internal disciplinary committee and training of police officers in public order management skills. Malawi needed international support for all those programs, he said, concluding that the “rule of law was not a luxury and justice, not a side issue”.
BERNARDITO CLEOPAS AUZA, Permanent Observer for the Holy See, said that concern for the neediest was not only a moral imperative but rather a yardstick by which to measure the success or failure of the 2030 Agenda. The focus was on whether those who were illegally detained, unjustly accused, with physical and mental disabilities, or who had no advocate were able to find recognition within the legal system. “Rule of law does not exist in a vacuum nor does it stand or fall alone,” he said. Reflection on the principle, therefore, must explore the cultural and social ethos in which the law was being implemented and investigate more deeply into the intersection between law and the world of non-State institutions and grassroots organizations. “After all, justice, which is the constant and perpetual will to give to each one his or her due, is learned and fostered primarily within the family, religious communities and civil society,” he said.
REEM JULIA MANSOUR, observer for the State of Palestine, associating herself with the Non-Aligned Movement, said that her State was in the process of developing a legal framework and had acceded to many important international treaties and conventions recently. Despite the challenge of Israeli colonial occupation, her country remained steadfast in its commitment to upholding international laws. The outdated legal framework it had inherited from different historic eras also impeded the development of the rule of law. The State was also conducting consultations with civil society, and its transparent and open process for preparing human rights reports had been characterized as a best practice. Turning to access to justice, she added that no matter how practical the measures to provide justice were, failure to apply those measures equally would create further problems. That had been her country’s experience under Israel’s brutal occupation, which included many discriminatory practices.
JUDIT ARENAS LICEA, observer for the International Development Law Organization (IDLO), was pleased that the 2030 Agenda recognized the importance of justice and the rule of law in development. Indeed, the rule of law was both an enabler and an outcome of development. She shared some of the work IDLO had been doing around the world, particularly in the area of women’s rights and combatting violence against women. The rule of law guaranteed that all people — wherever they were — received equal protection. Thus, in responding to the refugee and migrant crisis, it was as important to invest in the rule of law as it was to provide food, water, shelter and health services. To that end, her organization was committed to assisting governments in integrating international norms and standards into their domestic laws and institutions and to providing technical assistance and capacity development. IDLO would submit its four-year strategic plan to the Assembly of Parties in November.
STEPHANE OJEDA of the International Committee of the Red Cross (ICRC) said that upholding the rule of law strengthened the effectiveness of international humanitarian law. Security Council resolution 2286 (2016) emphasized the responsibility of States to ensure accountability for serious violations of international humanitarian law related to the protection of the sick and wounded in conflict situations, as well as the delivery of medical care in armed conflict. He went on to outline the technical expertise and other forms of assistance offered by the ICRC at the request of States towards implementing international humanitarian law provisions.
Statements on Criminal Accountability
JUAN AVILA, (Dominican Republic), speaking for the Community of Latin American and Caribbean States (CELAC), said that any type of misconduct and criminal behaviour committed by United Nations personnel on missions was “completely unacceptable and must never go unpunished”. Those acts were particularly grave because of the nature of the functions of the perpetrators, and the special vulnerability of the persons victimized. Taking note of the Secretary-General’s report on combating sexual exploitation and abuse, he reiterated CELAC’s zero-tolerance policy towards such criminal acts. Also of note were the Secretariat’s efforts to standardize the process of notifying Member States of serious allegations. He urged States to which cases had been referred to inform the Secretary-General of actions taken. Member States and the Secretary-General had a shared responsibility to prevent and punish criminal activities committed by persons working for the United Nations.
ALI NASIMFAR (Iran), speaking for the Non-Aligned Movement, stated that all United Nations peacekeeping personnel should perform their duties in a manner that preserved the credibility, impartiality and integrity of the Organization. It was of utmost importance to maintain a policy of zero tolerance in addressing all cases of sexual exploitation and abuse committed by peacekeeping personnel. The Organization should continue cooperating with States exercising jurisdiction, in order to provide them, within the framework of international law, with information and material for purposes of criminal proceedings initiated by States.
Turning to the Comprehensive Strategy on Assistance and Support to Victims of Sexual Exploitation and Abuse by the United Nations Staff and Related Personnel, which was adopted by the General Assembly resolution 62/214, he said that the strategy would help to mitigate the sufferings of those victims. As well, social support, legal services and medical attention would be offered. In addition, General Assembly resolution 61/291, which amended the revised draft model Memorandum of Understanding, should be implemented without delay. That process would strengthen the accountability of mechanisms and help guarantee due process with respect to investigations of acts of sexual exploitation and abuse.
THEMBILE ELPHUS JOYINI (South Africa), speaking for the African Group, stated that, given the number of United Nations officials and experts on mission and the number of United Nations peacekeeping missions active in Africa, the rule of law was as relevant as ever. He emphasized his support for the Organization’s zero-tolerance policy concerning criminal conduct, particularly involving sexual abuse and exploitation committed by United Nations officials or experts on mission. Criminal accountability was a fundamental pillar of the rule of law, and criminal acts should not go unpunished. He further noted that in previous meetings, several delegations had expressed the view that the existence of jurisdictional gaps in ensuring accountability had led to criminality. He welcomed the measures implemented into existing training on United Nations standards of conduct. In addition, States should be encouraged to cooperate with each other in criminal investigations in respect of crimes of a serious nature committed by United Nations officials and experts on missions.
PENNELOPE ALTHEA BECKLES (Trinidad and Tobago), speaking for the Caribbean Community (CARICOM) and associating herself with CELAC, recognized the significant contributions and sacrifices of United Nations experts and officials on mission to manage crises, as seen in Haiti, which had benefitted immensely from the United Nations Stabilization Mission in Haiti (MINUSTAH) assisting in areas such as electoral support. However, she also stressed the need to bring persons who violated international law to justice and underscored the importance of all United Nations officials behaving in a manner which preserved the image, credibility, impartiality and integrity of the United Nations.
She expressed concern over allegations of misconduct and sexual abuse of women and children at peacekeeping missions. It was important for States to establish jurisdiction over crimes committed by nationals serving at peacekeeping missions. The perpetrators of those “most heinous offenses” had to be held accountable, and she urged States to cooperate, where necessary, with criminal investigations or extradition proceedings. All personnel needed to be properly vetted by contributing States and the United Nations, she said, and all United Nations officials and experts on mission should be made aware of the need to respect and obey the national laws of the host State.
ANCA CRISTINA MEZDREA, of the European Union, said that, while the primary responsibility for bringing perpetrators to justice rested with the Member States, it was crucial that the State of nationality of an alleged offender must be promptly informed and consulted by the United Nations. It was equally crucial that the State also act in a timely manner, establish and exercise jurisdiction, investigate and, where appropriate, prosecute. Noting with regret that virtually all referrals since 1 July, 2007 remained outstanding as no information had been provided by the State of nationality, she called upon all States to provide information on referrals as soon as possible.
The number of new allegations of sexual exploitation or sexual abuse totalled 99 in 2015, compared with 80 allegations in 2014, she pointed out, adding that while that increase might reflect better awareness and more reporting, it also signified the need for a more resolute response in prevention, enforcement and remedial action. Another welcome step towards ensuring accountability of those who commit such crimes was Security Council resolution 2272 (2016) requesting the Secretary-General to assess whether a Member State had taken steps to investigate allegations and had held the perpetrators accountable. The European Union was ready to consider a proposal for a comprehensive international legal framework, which would clarify the circumstances under which Member States could exercise jurisdiction, as well as the categories of individuals and crimes subject to that jurisdiction.
MAY-ELIN STENER (Norway), also speaking for the Nordic countries (Denmark, Finland, Iceland, and Sweden), noted the positive steps being taken over the last two years to address criminal accountability of United Nations personnel, including the establishment of the Office of the Special Coordinator which aimed to improve the United Nations’ response to sexual exploitation and abuse. However, she underlined, primary responsibility for addressing serious crimes committed by their nationals serving as United Nations officials or experts on mission lay with the national jurisdictions of contributing countries. To provide an incentive for Member States to make necessary legislative amendments enabling them to investigate crimes and prosecute perpetrators, she suggested the development of a policy on minimal requirements for States that contributed officials and experts to United Nations missions.
Referring to the Secretary-General’s report on the matter she stressed that of the 89 cases referred to Member States, only 16 instances of feedback had been provided back to the Secretary-General. In addition, during the most recent reporting period, 2015-2016, of the 18 referred cases, which included corruption, instances of sexual exploitation and abuse of a minor and physical assault, to name a few, there was only one instance of feedback from a State in question. “This is wholly unacceptable,” she said, calling for the relevant resolution to be amended for the inclusion in the report of which Member States had and which Member States had not provided feedback to the Secretary-General on the follow-up of such cases. Ensuring accountability for those who committed crimes while on mission and the full transparency of Member States was important to the credibility of the United Nations.
CATHERINE BOUCHER (Canada), also speaking for New Zealand and Australia, while recognizing the dedicated work of United Nations personnel in the field, noted that criminal acts by persons exploiting their position as United Nations officials or experts on mission represented a serious threat to the credibility and work of the Organization. The failure to hold them to account risked tarnishing relations between the United Nations and the local populations its missions were meant to serve, thus undermining its ability to promote rule of law, security, development and human rights. Stating that it was appalling to hear of continued and increased allegations of sexual exploitation and abuse by United Nations personnel on mission, she welcomed the appointment of the first Special Coordinator on improving the United Nation’s Response to Sexual Exploitation and Abuse.
Also welcomed were the measures set out in Security Council resolution 2272 (2016) on sexual exploitation and abuse, as well as the measures included in the Secretary-General’s report, she went on to say. However, it was concerning that the Secretary-General’s report recorded that in 73 out of 89 cases referred to Member States for investigation, no information had been received from the Member States concerned. Member States were urged to investigate allegations of criminal conduct by their personnel and hold perpetrators accountable. In closing the impunity gap, she said, it was important that both Member States and the United Nations developed a culture in which individuals were encouraged to report alleged crimes. “If our commitment to the rule of law is to be more than rhetoric, the United Nations and Member States must lead by example,” she said.
DAMARIS CARNAL (Switzerland) said that follow-up measures concerning cases sent to States had to be strengthened and a coherent, global response was required to target all types of crimes and all United Nations staff. While the creation of the position of Special Coordinator and the adoption of Security Council resolution 2272 (2016) were welcomed responses, efforts were currently focused on sexual exploitation and abuse, as well as military personnel. It was crucial that those measures were applied to other types of crimes, such as financial offences, and to United Nations civilian personnel, not just within the Secretariat, but to the Funds and Programmes. “It is vitally important that procedures and mechanisms are established to make sure that all crimes committed by UN staff are dealt with consistently and professionally,” she said. Finally, the resolution on the matter should call upon Member States to report on the progress of investigations, disciplinary proceedings and measures within their jurisdiction, including cases from previous years, as well as information on efforts taken to prevent the recurrence of such acts.
ELSADIG ALI SAYED AHMED (Sudan), associating his delegation with the Non-Aligned Movement and the African Group, expressed his concern over allegations of sexual abuse and exploitation, as well as physical aggression and killings undertaken by members of United Nations peacekeeping operations. Criminal accountability of United Nations officials and experts in missions was of importance, as it reflected the credibility and neutrality of the Organization. Member States should not allow the special status of United Nations officials on Mission to shield them from accountability. There was a need, he said, for tangible procedures so that perpetrators could be brought to justice. “Justice must not just be done, it must be seen to be done,” he said.
RUBÉN IGNACIO ZAMORA RIVAS (El Salvador), associating himself with CELAC, said that immunity was not synonymous with impunity. Noting that his country had benefited from United Nations peacekeeping missions, he said he was aware of the difficulties challenging States and the vulnerability of populations facing armed conflict, disaster, or emergency situations. However, it was not possible to maintain international peace and security while serious crimes were being committed, or while room was given for immunity to thrive. Persons from El Salvador who served in peacekeeping operations had to abide by international law; his country provided training for its staff to act according to those laws. He emphasized that while those committing such crimes at the United Nations were a small minority, there was a culture of tolerance and concealment by the management staff of the Organization.
SERGEY A. LEONIDCHENKO (Russian Federation) said that the Secretariat must provide full information to States regarding their nationals who were suspected of crimes. It was vital to strengthen channels between the Organization and governments, while focusing efforts on crime prevention activities, including early stage staff training. The investigation of accusations should be conducted in compliance with international law and the State of nationality of the offender should have jurisdiction in order to uphold the right to a fair trial. Most States did have mechanisms, in line with the norms of international legal instruments and criminal investigations, to prosecute nationals who were United Nations officials. Therefore, he stated, he did not see the need for a new international treaty on the matter. If an international legal lacuna had been identified, it would be appropriate, but if the problem was due to the lack of political resolve in harnessing domestic legal instruments, a new international treaty would hardly change the situation.
PONPAT THITTHONGKHAM (Thailand) said criminal accountability was fundamental to the rule of law, and impunity undermined the integrity, credibility and effectiveness of the United Nations, particularly its peacekeeping operations. Her country had reaffirmed its commitment in the Declaration of Leaders’ Summit on United Nations Peacekeeping. Thailand had a long history of contribution to peacekeeping operations, participating in four peacekeeping operations. It also supported the increased participation of women in mediation, peacekeeping operations, peacebuilding and post-conflict development. At the national level, she noted Thai law ensured criminal responsibility of its nationals who served as United Nations officials or experts on mission.
INA HAGNININGTYAS KRISNAMURTHI (Indonesia), associating herself with Association of Southeast Asian Nations (ASEAN) and the Non-Aligned Movement, stated that while the privileges and immunities of United Nations officials should be preserved, prevailing national and international laws should also be respected. While firmly supporting the Organization’s zero-tolerance policy, she voiced dismay at the reported cases of sexual exploitation and abuse in various peacekeeping operations. That tarnished the extremely hard-earned reputation of the blue helmets. The countries whose personnel had been accused should inform the United Nations of the conclusion of their investigations. Over 100,000 uniformed personnel were currently serving in sixteen missions. The overwhelming number continued to do an exemplary job in extremely difficult situations. The despicable acts of a few must not lead the international community to look down on the remarkable conduct of the vast majority of peacekeepers, she stressed.
ISAÍAS ARTURO MEDINA MEJÍAS (Venezuela), associating himself with CELAC and the Non-Aligned Movement, stated his support for the Secretary-General’s zero-tolerance policy of criminal acts, sexual exploitation and abuse. Those crimes caused harm to victims, their family members and host States, as well as tarnished the reputation of the United Nations. Welcoming the progress made in pre-deployment training, he underscored that the Organization should ensure its officials upheld integrity in the discharge of their duties. Measures taken by States to stamp out impunity and highlight the problems of jurisdiction and jurisdiction immunity to which officials and experts were permitted were appreciated. While respecting the fundamental right to due process, best efforts must be made to investigate, prosecute and punish such crimes to overcome immunity.
EMILY PIERCE (United States), recalling that discussion of zero tolerance for sexual abuse by United Nations peacekeepers had arisen over a decade ago, noted that the Secretary-General’s strong leadership in the promotion of accountability had created a cultural shift, “taking sexual abuse out of the shadows” and holding United Nations personnel accountable. She also stressed that sexual exploitation was not the only form of misconduct; Annex 2 to the Secretary-General’s report listed numerous allegations, including, among others, fraud, counterfeiting, firearms violations, and diamond smuggling. Any criminal activity tarnished the Organization’s reputation and could victimize the very people the Organization was mandated to protect. Welcoming the work done by the Department of Field Support (DFS) and the Office of Legal Affairs (OLA) to finalize guidance for the field on procedures for referring possible misconduct to host countries, she requested an update on the status of that guidance. She also observed that, in 89 reports from 2007 to 2016 that involved United Nations personnel, only in one did the Organization request a waiver of immunity and only in 16 was there any information on action taken by Member States. Lack of follow-up, she said, gave “the impression of impunity for alleged crimes”.
MAHLET HAILU GUADEY (Ethiopia), associating herself with the Non-Aligned Movement and the African Group, said that, as a troop contributor, her country greatly valued the contributions of the peacekeepers. Noting with concern that crimes committed by a few United Nations officials and experts were tarnishing the sacrifices of the majority, she added that Ethiopia provided its peacekeepers with the necessary pre-deployment training, including on sexual exploitation and abuse. Whenever the county received a report of misconduct, it was determined to carry out the necessary investigation. However, allegations of sexual exploitation and abuse were extremely serious and in Ethiopia’s limited experience, some of those allegations did not meet the minimum evidentiary standard.
TAIWO ABIDOGUN (Nigeria) said that as a troop-contributing country, his country supported the United Nations zero-tolerance policy, as well as having cases of alleged criminal conduct by the official or expert referred to the State of nationality for a thorough investigation and possible prosecution where a prima facie case was established. Nigeria embraced the current procedure that allowed a troop-contributing Member State to exercise authority over its erring nationals completing a United Nations mission. Measures implemented by the Departments of Peacekeeping Operations and Field Support regarding activities to raise the awareness of personnel were also welcomed. He noted the initiative to develop an accountability framework as a yardstick for the performance of field missions. In addition, practical steps could be taken to strengthen existing training programmes on the United Nations code of conduct, through pre-deployment and in-mission induction training.
AVIGAIL FRISCH BEN AVRAHAM (Israel) said United Nations officials and experts on mission who committed serious crimes had to be investigated and prosecuted appropriately. She said she looked forward to seeing how the different States would develop their national legislation to ensure the criminal accountability of their nationals serving on United Nations missions, and urged Member States to take action so that such crimes were not met with impunity. A mechanism was being proposed which would allow the Security Council to examine the State’s participation in United Nations missions, when that State failed to demonstrate a record of serious crimes committed by its nationals. She further urged all States to develop legal and practical ways to strengthen the capacities of their national authorities to investigate and prosecute crimes.
JUAN SANDOVAL MENDIOLEA (Mexico), noting that, out of the 89 reports received since 2007 only 16 included measures that States had taken to investigate, said it was regrettable that some States continued to fail to adopt measures to tackle that problem. Those crimes were going unpunished. It was critical to ensure that peacekeeping operations staff complied with all aspects of the United Nations Charter, and to that end, his country supported the Organization’s zero-tolerance and zero-impunity policies toward such crimes. Also welcoming Security Council resolution 2272 (2016), he called for commitment from all States to cooperate with the United Nations. In addition, a convention would be useful in establishing an international basis compelling States to investigate alleged cases.
MEHDI REMAOUN (Algeria), associating himself with the Non-Aligned Movement and the African Group, welcomed the adoption by the Security Council of resolution 2272 (2016). In that text, the Council endorsed the decision of the Secretary-General to repatriate a particular military unit or formed police unit where there was credible evidence of systemic sexual exploitation and abuse by that unit. However, he emphasized that repatriation was not sufficient and did not represent a sanction. Therefore, Member States must take appropriate actions to hold national offenders accountable. Reaffirming support for the United Nations zero-tolerance policy, he added that it was crucial to implement the preventive and practical measures adopted by field missions of the Department of Peacekeeping Operations and the Department of Field Support to strengthen training on United Nations standards of conduct.
KOTESWARA RAO MEDINI (India), associating his delegation with the Non-Aligned Movement, said it was worrying to see the increase in the number of cases of sexual exploitation and abuse. He highlighted paragraphs 61-62 of the Secretary-General’s report that referred to the programme of vetting of personnel, along with mention of the observation of the law of the host State and the consequences of failing to do so. Further paragraphs suggested States should establish jurisdiction of crimes of their nationals while serving as officials and experts on Mission. In his view, he said, the implementation of that element would help fill the jurisdictional gap. He reiterated his view that dealing with the wrongdoing of United Nations officials did not need a convention. What was needed was for Member States to update their laws to provide jurisdiction.
ANGEL HORNA (Peru) associating his delegation with CELAC and the Non-Aligned Movement, said that the bad agents in peacekeeping operations required that Peru remained committed to the Secretary-General’s zero-tolerance policy. The United Nations and all States should enhance information and facilitate investigations, along with providing mutual assistance to one another with regard to serious crimes committed by United Nations experts and officials. His country had provided important information via a United Nations Secretariat questionnaire so that they could facilitate the national provision of jurisdiction when trying their officials of serious crimes. While noting the valuable contribution of United Nations experts, he said that such contribution could not violate the basic principles of the rule of law.
INGA KANCHAVELI (Georgia) stated that according to the Criminal Code of her country, citizens who committed an act abroad prohibited by the Code were criminally liable if that act was also considered to be a crime under the legislation of the State in which it was committed. She also underscored that Georgia had experience as a contributor to international security and stability by providing military contingents as part of peace operations globally. Furthermore, despite the fact that 20 per cent of Georgian territory remained under illegal foreign military occupation, her country remained committed to international peace efforts. Georgia was fully committed to a zero-tolerance policy against sexual exploitation and abuse. She noted that the Georgian Government and the Georgian Armed Forces responded to allegations voiced by the Office of the United Nations High Commissioner for Human Rights (UNHCHR) regarding the sexual abuse of minors by members of foreign military forces in the Central Africa Republic. She also noted that “at this stage, according to preliminary data of investigation, no sign of Georgian soldiers’ involvement in the crime” had been revealed.
RAJU GURAGAIN (Nepal), associating his delegation with the Non-Aligned Movement, said it was important that United Nations officials and experts on mission should conduct themselves in a manner that was befitting of the integrity of the Organization. Stressing the importance of triangular relations between the United Nations Secretariat, the host Government and peacekeeping operations, he commended the efforts of the Departments of Peacekeeping and Field Support in pre-deployment and in-mission training. Welcoming the increasing participation of female peacekeepers, he noted that his country had been deploying more female peacekeepers to the extent possible. Furthermore, Nepal was committed to implementing various relevant Security Council resolutions.
MOHD RADZI HARUN (Malaysia), strongly urging States to establish jurisdiction over the crimes of their nationals while serving as United Nations officials and experts on Mission, said that such jurisdiction was applicable under the Malaysian penal code. There should be cooperation among States in the exchange of information to ensure there was no impunity for officials. Definitions used throughout the draft convention mentioned in paragraph 12 of General Assembly resolution 70/114 should be considered, as well as a consideration of the concept of dual criminality. The draft convention should seek to remove dual criminality, despite it being a time-tested element that had been in existence for a long time and was a mandatory requirement under Malaysian domestic laws.
MOHAMMED ATLASSI (Morocco) associating himself with the Non-Aligned Movement and the African Group, said that, since 1960, Morocco had provided skilled contingents to peacekeeping operations. Any criminal offence committed by an official or expert on mission must be prosecuted before the competent national courts of the accused. All personnel were obliged to observe the laws of the State they were deployed in regardless of the privileges granted to them. In addition, it was necessary to consolidate what Member States were doing, he said, adding that Morocco welcomed the action taken by the Department of Peacekeeping Operations and the Department of Field Support.
MOHAMMAD HUMAYUN KABIR (Bangladesh), associating himself with Non-Aligned Movement, stated that all United Nations personnel had the obligation to uphold the Charter and any allegations of wrongdoing should be duly investigated. However, it was critical that allegations were proven beyond reasonable doubt before subjecting the accused official to sanctions. His country contributed to peacekeeping missions and in line with its due diligence approach to sexual exploitation and abuse, his country addressed such allegations in a decisive way. Vigorously designed pre-deployment training and effective prosecution systems were crucial to combating the problem, he stated, and called for capacity building to accomplish that task.
NGUYEN TA HA MI (Viet Nam), associating her delegation with the Non-Aligned Movement, said that Viet Nam stood ready to cooperate with the United Nations and other States in investigating serious crimes relating to officers and experts sent by her country to missions. She underscored that since Viet Nam started contributing troops to peacekeeping forces in 2013 there had been no incident or allegation of misconduct of Vietnamese officers and officials. She also highlighted that Viet Nam continued to enter into treaty relations with mutual cooperation in areas of criminal investigation, exchanging information with other States.
Statements on Responsibility of States for Wrongful Acts
JUAN AVILA (Dominican Republic), speaking for CELAC, said that the responsibility of States was a cross-cutting matter and the effectiveness of international law relied on its existence. Since the adoption of the draft articles on the responsibility of States for internationally wrongful acts in 2001, its future had been “an object of much debate”. The question of adopting a convention based on those articles should be thoroughly considered. The working group established on the issue within the Sixth Committee was the right path to follow in order to move towards that end. Codifying articles in a binding instrument could bring clarity and legal certainty to the subject, addressing gaps in international law.
“We cannot deny”, he added, the existing link between the responsibility of States and other priority subjects such as diplomatic protection. The development of State responsibility and the eventual adoption of a treaty on that matter would undoubtedly have a positive impact on those other subjects as well. While he was conscious of the different arguments and circumstances that might obstruct the consensus on the matter, he stressed that “excessive prudence does not have to impede a widely accepted agreement in a diplomatic conference.”
THEMBILE ELPHUS JOYINI (South Africa), speaking for the African Group, said recent committee debates had revealed a “strong plurality of States” favouring an adoption of a convention on the responsibility of States for internationally wrongful acts. Arguments supporting an adoption highlighted that draft articles had sufficiently incorporated the law on international responsibility, providing the proper legal basis for the creation of an international convention. Furthermore, a diplomatic conference to negotiate a treaty would enhance the consensus around those draft articles, he said, stressing that it was time for the committee to take a decision on the convention.
He went on to say that the outcome of that decision would, in turn, impact existing draft articles on the topic of diplomatic protection, as those two items were closely interlinked. The Committee had been discussing whether to also commence negotiations on an international convention on that matter. Some States, however, preferred deferring until a final decision on the convention on responsibility of States had been taken.
NIINA NYRHINEN (Finland), also speaking for the Nordic countries (Denmark, Iceland, Norway and Sweden), said that, in 2001, the International Law Commission had adopted the draft articles on responsibility of States. Those texts had become widely known and cited by lawyers, governments and legal institutions, most notably by the International Court of Justice. The articles had also influenced State practice and the jurisprudence of international courts and tribunals.
It would not be advisable at the present time to embark on negotiations for a convention on the matter, she went on to say. Although a multilateral convention was usually an ideal instrument for guiding State action and creating legal certainty, the time was not ripe for a diplomatic conference aimed at producing such a convention. Furthermore, there was a risk that reopening the articles might jeopardize the delicate balance built into them.
KELLY MACKIE (New Zealand), also speaking on behalf of Australia and Canada, expressed gratitude for the work of the International Law Commission for its work on the draft articles. However, it would be unhelpful to try and negotiate the articles as a convention. Currently, those texts served as a useful guide for governments and international courts in their efforts to find practical solutions under international law. Attempts at codification could stir further disagreement and dilute their usefulness. The adoption of a resolution endorsing the draft articles remained the most viable approach and one that would best reflect the range of views heard to date, she maintained, stressing the need for the debate to focus on ensuring that appropriate weight was given to the draft articles without undermining them.
TANIERIS DIÉGUEZ LA O (Cuba), associating herself with CELAC, stated that the matter of internationally wrongful acts was of great importance, and the work of the International Law Commission on draft articles to arrive at a convention welcomed. She noted that there was reluctance from some countries to codify their provisions, adding that some States might not ratify a future convention, or might evade their responsibilities and call for immunity to avoid international norms. States that violated international law should be obliged to sign a convention.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador), associating himself with CELAC, referred to the Secretary General’s reports and welcomed the compilation of decisions by courts, tribunals and other international organs. Those articles clarified State responsibility as a principle of international law where there was a failure to meet an obligation because a wrongful action had occurred. He stressed that a balance in international law should be achieved where primary rules were in force; without them there would be a system that lacked any mechanism for ensuring such enforcement. The adoption of an international instrument would be helpful for addressing the issue. He highlighted El Salvador’s support for an international conference to elaborate a convention, noting that it should not be postponed to the next session.
NATALIE Y. MORRIS-SHARMA (Singapore) voiced concern that the draft articles on the responsibility of States could have negative implications. Providing a legal regime for countermeasures within the framework of State responsibility was a complex matter best addressed in a specialist forum. While ILC had made minor changes to address her concerns, those modifications were insufficient. However, whether the General Assembly chose to treat the draft articles either as principles that could be flexibly applied by international tribunals and States, or as the basis by which ILC turned the texts into a convention, it was important that the decision be based on consensus.
ELENA A. MELIKBEKYAN (Russian Federation) voiced her favour for the adoption of a convention based on the draft articles, as such a convention could become fundamental in international law and would be a stabilizing factor in international relations. Judging from the report, the articles were significantly helpful in the world of international judicial bodies. It was also understandable that they were beginning to take their own life as independent documents, even though some of the provisions in the drafts required additional work. She said she supported considering the convening of an international conference on the matter.
ISAÍAS ARTURO MEDINA MEJÍAS (Venezuela), associating himself with CELAC and the Non-Aligned Movement, underscored that the responsibility of States was of primordial importance to preserving international order and developing relations between countries on the basis of respect and equality. The many years of work carried out by ILC should lead to the approval of a legally binding act, which, with other instruments, would be a major plank for contemporary international law. The working group should continue to consider the concept of a convention, he said, and reaffirmed his country’s support for all measures that could lead to that instrument’s adoption.
AHILA SORNARAJAH (United Kingdom) said that the articles on State responsibility were one of the most important achievements of the International Law Commission. Despite their sensitive nature, their impact was reflected by the number of times the articles were featured in the judgements of national and international tribunals. The practice of States in that area continued to evolve, and areas of uncertainty and disagreement remained. However, the premise of codification, namely that customary international law had been settled, was absent.
AVIGAIL FRISCH BEN AVRAHAM (Israel) emphasized that the law on State responsibility was one of the fundamental pillars of public international law. Although she held reservations on certain issues, she said the ILC articles served as an undeniable legal accomplishment that enhanced the rule of law among nations. However, she voiced concern regarding the formulation of the articles into treaty form. Negotiations at the present time were likely to unravel the fragile balance struck in the wording of the articles, and therefore, were inadvisable. The articles currently effectively guided Governments and international bodies that sought to resolve sensitive issues of international law and should be permitted to develop organically, and not through multilateral treaty negotiations or international conferences.
MEHDI REMAOUN (Algeria), aligning himself with the African Group, said that one of the most important parts of the draft was Chapter II of the second part, relating to reparation for injury. Given the growing use and acceptance of the draft articles by international courts, tribunals and other bodies, he said he was confident that the conditions of maturity had been met to convene a diplomatic conference to adopt an international convention on responsibility of States. Furthermore, he added, he fully supported the idea of developing a multilateral instrument of universal scope. The working group item 74 would be an appropriate venue to discuss the possibility of holding a diplomatic conference to develop a new convention.
CRISTINA MARIA CERQUEIRA PUCARINHO (Portugal), noting that the draft articles had undergone a long period of reflection, said it was time to seek agreement on a way forward. The adoption of a convention could be the best way as it would also be the path that would best honour the work of the International Law Commission and its special rapporteurs. The subject was an area of international law that deserved to be incorporated into a legal instrument, she said, adding that it would be “senseless” not to continue with that matter, and then proceed with others, such as the issue of diplomatic protection.
ALEXANDROS KOLLIOPOULOS (Greece) stressed that the draft articles on State responsibility constituted the greatest achievement of the International Law Commission to date. He noted that the most important elements of the drafts included the codification of customary rules, a significant promotion of the notion of peremptory norms of international law and the removal of the notion of damage as a condition for the attribution of responsibility. Furthermore, he said that those elements had been gradually highlighted by State practice and international jurisprudence. However, the delicate balance of the text had to be maintained.
ALI NASIMFAR (Iran) said the work done by the International Law Commission was outstanding, reflecting a wealth of intellect and consideration. The extensive reliance on the articles by international courts and tribunals was indicative of the high value of the work of the Commission. He noted the separate opinion of Judge (Leonid) Skotnikov in the case Belgium vs Senegal in the International Court of Justice in 2012 regarding alleged violations of an erga omnes partes obligation. In that regard, article 48 needed to be further clarified in light of State practice. The only way to realize the rules of State responsibility was to crystallize the draft articles in the form of a binding treaty. It was also imperative to devise a dispute settlement mechanism for the future convention.
ANGEL HORNA (Peru) associating himself with CELAC, said that the matter at hand was of great importance in State relations and a fundamental principle of international law. If States were equal, they were equal in terms of their rights and duties. The articles were the product of almost half a century of hard work, codification and development of law by ILC. Since their adoption in 2001, the articles had acquired a certain authority that was reflected in the number of times they were referenced in courts, tribunals and other international bodies. Some of them were reflected in international customary law, as well. He underscored his participation in the working group with the view of taking a decision on the possibility of a convention.
MOHD RADZI HARUN (Malaysia) said he was generally supportive of the efforts taken by the drafting committee and special rapporteur that led to the draft articles, adopted by the General Assembly in 2001. He emphasized, however, that in 2005 and 2010, Malaysia had highlighted concerns and observations on certain articles, such as article 7. In regard to the request of the General Assembly for Governments to submit information regarding decisions of international courts, he said that there was no reference to the ILC articles in any of the international cases to which Malaysia was a party. Furthermore, he said he did not think negotiations on the draft articles to develop a convention should take place at the current time, as such a move could unravel the “fragile balance” it currently held; the articles were useful in their current, non-binding form.
EMILY PIERCE (United States), emphasizing that the draft articles were most valuable in their present form, said that the General Assembly should take no further action on them at the current time. The negotiation of a convention based on the articles would add little in terms of additional authority or clarity. The texts had become a helpful guide, not only to courts and tribunals, but also to States and other international actors; they illuminated what the law was and how the law might be progressively developed. However, the negotiation of a convention risked undermining the very important work done by the Commission in crafting the draft articles. Of particular concern was the prospect that the resulting convention might deviate from important existing rules or ultimately not enjoy widespread acceptance.
PABLO ADRÍAN ARROCHA OLABUENAGA (Mexico) stated that the international community, including several courts and tribunals, had benefited enormously from the draft articles and just recently, in its ruling of preliminary objections, the International Court of Justice had referred again to the articles. There were shortcomings in the process of forming customary international law because of “legal uncertainty”. Therefore, a political conference should be convened where the articles could be adopted as an international treaty. Fifteen years after the Assembly had received the finalized articles, more than enough time had passed to make headway on the task of codification. The task of the working group must be to assist States to make headway with that, and the Secretariat could help them by drawing up a working document on possible paths and procedures.
SHI XIAOBIN (China) said the responsibility of a State for its internationally wrongful acts was an essential component of the rule of law. Since the completion of the draft articles by ILC in 2001, three main views on what type of action should follow had emerged: the establishment of a convention; adoption of draft articles through a General Assembly resolution or declaration; and an approach advocating no further action. While the draft articles were quite mature, some of the clauses were still controversial. Member States had not yet reached consensus around critical articles, including “serious breach by a State of an obligation arising under a peremptory norm of general law” and “measures taken by States other than an injured State”. Further in-depth discussions were needed to expand consensus.
Statements on Diplomatic Protection
JUAN AVILA (Dominican Republic), speaking for CELAC, said diplomatic protection was a well-established institution of international law and that many of the draft articles on the item reflected State practice and were recognized as customary international law. The creation of a convention on diplomatic protection would be a valuable exercise to address existing loopholes in international law and would help to promote legal certainty and predictability in that important field.
He went on to say that a convention would serve to broadly enhance the rule of law at all levels and contribute to the peaceful settlement of disputes. That would have to take into account that the draft articles were not applicable to the extent that they were inconsistent with special rules of international law, such as treaty provisions for the protection of investments. A convention would also contribute to the codification of international human rights law in the area of human rights. He also acknowledged the existing link between the draft article on diplomatic protection and those relating to the responsibility of States for internationally wrongful acts.
ADRIENNE ELMITT (Australia), also speaking for New Zealand and Canada, welcomed the adoption of the draft articles on diplomatic protection by ILC. To the extent that they articulated important aspects of customary international law, the texts provided useful guidance to States and international bodies. However, it currently would not be appropriate to adopt a convention based on the draft articles. Those texts were closely bound with the articles on the responsibility of States. In the absence of a clear consensus on a convention on the basis of the articles on State responsibility, it would be premature to commence negotiations on a convention based on the draft articles on diplomatic protection.
TANIERIS DIÉGUEZ LA O (Cuba), associating herself with CELAC, said that the adoption of a convention on diplomatic protection would help harmonize all the existing in jurisprudence. In addition, it would consolidate the set of rules relating to diplomatic protection. Unfortunately all States did not use diplomatic protection appropriately. There were times where States sued diplomatic protection as a kind of pressure tactic against other States. However, it was important to note that diplomatic protection was the sovereign right of States and part of the rule of law. It ensured protection of fundamental rights. The draft articles were very closely linked to the draft articles on State responsibility.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador), aligning himself with CELAC, said that diplomatic protection had developed considerably as a result of the evolution of international law over the past century. Although people enjoyed more international resources for protection of rights, diplomatic protection remained a concern in the arsenal of human rights. It must be understood as an existing resource that would protect the rights of people in the international community as well as State interests. Diplomatic protection had an extremely important role as an effective instrument within international law. In that regard, he said he was willing to carry out the work needed to make the draft a binding legal instrument that would ensure the right of all States to protect the rights of all citizens.
ELENA A. MELIKBEKYAN (Russian Federation) said, in regards to the draft articles of diplomatic protection, that those texts were important as they related to States’ protection of its people, as well as refugees, in the event of a wrongful action from another State. She underscored different areas of diplomatic protection, including the right of a State to exercise it, the citizenship of persons enjoying it, and the protection of corporations. The draft articles on diplomatic protection complemented the articles on State responsibility. They also, she emphasized, represented a good basis for developing a convention on diplomatic protection. As well, she was also ready to consider other ways to make the articles legally binding.
AHILA SORNARAJAH (United Kingdom) said the fate of the draft articles on diplomatic protection was closely bound up with the draft articles on the responsibility of States. Article 1 defined diplomatic protection in terms of the invocation of the responsibility of another State, and the provisions of the draft articles were seen as giving content to the admissibility requirements of article 44 of the articles on State responsibility in the specific context of diplomatic protection. Thus, in the absence of consensus for a convention based on the draft articles on State responsibility, a decision to begin negotiating on diplomatic protection articles was premature. She further noted that the text went beyond codification of customary international law and contained elements which amounted to its progressive development. She underscored that some elements of progressive development of the law would conflict with the United Kingdom’s current practice. The drafting of a convention of diplomatic protection was not the only possible successful conclusion.
CRISTINA MARIA CERQUEIRA PUCARINHO (Portugal) voiced her support for the creation of a convention on the basis of the draft articles, as diplomatic protection had an important function as a last resort device in the protection of human rights; it was an important remedy for individuals. Expressing general agreement with the draft articles and with their suitability for an international convention, she also noted that certain aspects could be improved. There was a clear link between the topic and State responsibility. The two processes should go hand-in-hand and lead to the elaboration of two parallel conventions. That would be a major step in the consolidation of law on international responsibility.
DAVID LOW (Singapore) said that some of the aspects of the draft articles suggested the need for more caution. The Commission had, in its own commentaries on the draft articles, recognized that several articles represented progressive development of the law rather than a codification of existing customary international law. Examples included draft article 8 on stateless person and refugees and draft article 15 on exceptions to the rule of exhaustion of local remedies. The topic was closely interlinked with several other important areas of international law, and any legal framework on diplomatic protection must be constructed on the basis of international consensus and mutual understanding.
ALI NASIMFAR (Iran) said that diplomatic protection played an important role in international relations today and any legal regime must be based on a thorough understanding of the rights of the individual and the rights of the State. It was doubtful that the current set of draft articles could satisfy that concern. Some of the articles could not be deemed as reflective of customary international law. The one relating to protection of stateless persons or the one relating to people with multiple nationalities had been formulated based on case law of regional tribunals. Furthermore, although in its commentary the Commission had pointed out that the draft articles were not going to deal with primary rules, some provisions were contrary to that expression.
EMILY PIERCE (United States) stated that, consistent with its statements in 2007 and 2013, the General Assembly at the current time should not take any further action on the draft articles on diplomatic protection. Concurring with other States, she said that where the draft articles reflected State practice, they were a substantial contribution to the law of diplomatic protection. However, she stressed that a limited number of articles were inconsistent with customary international law, and she voiced concern that negotiation of a convention risks undermining the significant contributions achieved by the draft articles.
ISAÍAS ARTURO MEDINA MEJÍAS (Venezuela), associating his delegation with CELAC, expressed his gratitude for the important work of ILC in studying the differences and juxtapositions between diplomatic protection and consular assistance. The draft articles on diplomatic protection were intended to codify international custom, doctrine and jurisprudence. He noted it intended to provide clarity to diplomatic protection, as well as the limits and scope of its exercise. Although there was recognition of the definitive nature of article 1, by refraining from covering refugees, the argument was that article 3 should include them. He highlighted that persons without protection would not be excluded from the text of article 1, placing unnecessary emphasis on nationality for the exercise of diplomatic protection and leading to refugees being excluded in a discriminatory fashion.